The Hon’ble High Court of Delhi held that the subsequent suit for restraining passing off is not barred under Order II Rule 2 of the Code of Civil Procedure 1908, as the cause of action for an infringement suit is different from the cause of action for a passing off.
The same was held in the matter of Greenlight Planet Pvt. Ltd. Vs. Gee Lighting Technology CS(Comm) 290/2018 on 14.11.2018
By way of the present suit, the defendant filed an application Order VII Rule 11 of the Code of Civil Procedure on the ground that the plaint is liable to be rejected as the present suit for permanent injunction restraining passing off was barred under Order II Rule 2 of the Code.
The objection raised by the defendant was that the Plaintiff failed to claim the relief in respect of passing off its goods in the earlier suit filed for infringement of design. Hence the filing of present suit is barred by law as the cause of action is similar and continuing.
The High Court after analysing the contentions of the parties, held that the object of Order II Rule 2 of the Code is to prevent multiplicity of suits and to further protect a person from being vexed twice qua the same cause of action. The whole intent of the said rule is based on the principle that every suit filed by the plaintiff should include whole claim which the plaintiff id entitled to make on the same cause of action.
The Court after observing the position of Order II Rule 2, dismissed the said application of the defendant and further opined that the cause of action for an infringement suit is different from the cause of action for a suit of passing off.
The High Court formed this view after considering the pronouncements in Micolube India Limited Vs. Rakesh Kumar Trading as Saurabh Industries & Ors., AIR 2013 Delhi 143.